Watson v. Damon

Department No. 1, Morrison, C. J.: The complaint in this case alleges that on the 15th day of March, 1876, the defendant entered into a verbal contract with the plaintiff, by the terms of which plaintiff was to furnish the necessary materials, and to build a dwelling-house for the defendant on a certain lot in the city of Oakland, according to a certain plan and specifications; said house to be completed within sixty days, for the stipulated sum or price of $2,250 in gold coin. Plaintiff avers performance on his part,' and claims a balance due him of $1,350.

Defendant denies specifically all the material allegations in the complaint.

Judgment was rendered for the plaintiff; and defendant having moved for a new trial, which was refused, takes this appeal from the judgment, and also from the order denying his motion for the new trial.

The first error relied upon is, that “the instructions of the Court to the jury were contradictory as to a material issue, and were calculated to mislead the jury in their deliberations.”

Appellant’s counsel has failed to direct the attention of the" Court to anything in the instructions which establishes the error complained of, and on an examination of the instructions we fail to find any such inconsistency.

[279]The next point is, that “ the Court erred in instructing the jury that their verdict should be for a fixed sum, less certain payments, the amount of which was specified by the Court, the jury being the exclusive judges of the facts.”

That the facts of the case must be left to the jury, and that the Court cannot interfere with the exclusive prerogative of the jury in passing upon the facts of the case, are familiar principles, well settled by authority in this State; but it will be found on examination of the transcript that there was no conflict in the evidence respecting the cost of the building. The plaintiff testified that it was to cost $2,250; and the defendant, when called as a witness, stated that “he knew the house was to cost $2,250.”

In this view of the case, the appellant was not prejudiced by the instruction complained of. (Terry v. Sickels, 13 Cal. 427; Pico et al. v. Stevens, 18 Id. 376; Tompkins v. Mahoney, 32 Id. 231.)

The last error assigned by appellant is, that “ the verdict of the jury is defective, and insufficient to sustain the judgment.”